Santa Clara County now files the second-most proactive gun-violence restraining orders in the state each year: Local authorities intervene on average more than once per day in cases involving people known to be armed and actively threatening themselves and others.
Prosecutors say the county has steadily increased its output of such orders since the onset of a corresponding red flag law in 2016, going from seven filings that year to 405 in 2022. Only San Diego County had more last year. Such laws are meant to assist authorities in confiscating weapons from people who might be dangerous.
But an array of court fights — both settled and upcoming — pose an existential threat that advocates and experts admit could upend the legal foundation for red-flag laws as a whole.
“There is consensus in the public about the notion that people who are dangerous should not have guns,” said Marisa McKeown, a prosecutor and supervisor of the Crime Strategies Unit in the Santa Clara County District Attorney’s Office. “Responsible gun owners should all agree that dangerous people should not have firearms.”
Santa Clara County District Attorney Jeff Rosen is proposing a state ballot initiative for next year — dubbed the Gun Safety Accountability Act — that would introduce an annual gun license fee and special tax to fund dedicated mental health services for those disarmed by the gun orders. The measure would also fund support centers for gun violence victims, as well as mandating firearms training and safety measures for gun owners and buyers.
One of the new laws Gov. Gavin Newsom recently signed introduces a state tax on guns and ammunition to fund gun violence prevention and school safety programs. Immediately after the Newsom signings, groups like the California Rifle and Pistol Association pledged to fight the new laws, which include a ban on legally concealable guns in public places. They cited last year’s Bruen decision by the U.S. Supreme Court, which outlawed “good cause” assessments that were relied on by some jurisdictions as a gatekeeper for who got concealed-gun licenses.
The laws “are being challenged, and the second they are signed, the clock starts ticking toward a judgment striking them down,” the state gun association told The Associated Press.
McKeown said the basis of that landmark court ruling — the idea that any gun restriction has to be traced to the “historical tradition of firearm regulation” in the United States — has spurred numerous local legal challenges to current gun enforcement. Gun violence restraining orders, for example, allow authorities to temporarily disarm people who have made credible and serious threats against others or themselves. Such a restraining order must be reviewed by a judge within 21 days.
“It is absolutely not settled,” McKeown said of the future of red-flag laws in California. “We are far from in the clear to have these long term. All of these decisions heard across the country challenge the fabric of any regulatory action.”
On Tuesday, the Supreme Court will hear oral arguments in United States v. Rahimi. In that case, the Fifth Circuit Court of Appeals drew on the Bruen decision to declare that a Texas law prohibiting firearms for those under domestic violence restraining orders violated the Second Amendment.
If the high court affirms the lower court’s ruling, challenges to similar laws in California, as well as gun violence restraining orders, would likely follow.
“It’s certainly an interesting moment where the Supreme Court seems to be moving in one direction and some of the blue states are trying to move in the other direction on guns,” said John Donohue III, a Stanford University law professor and gun policy expert.
Meanwhile, State Attorney General Rob Bonta’s office is fighting a San Diego federal judge’s ruling striking down California’s assault weapons ban. The judge wrote in his latest opinion that “the state’s attempt to ban these popular firearms creates the extreme policy that a handful of criminals can dictate the conduct and infringe on the freedom of law-abiding citizens.”
These legal battles form the backdrop for current efforts to disarm people with the idea of preventing mass shootings like those at a San Jose VTA railyard in 2021 — the deadliest in Bay Area history, with nine people slain — or the Gilroy Garlic Festival shooting two years earlier.
“No one was saying those guys should have had a gun,” McKeown said.
The district attorney’s office highlighted three cases from the past year that demonstrate the kinds of scenarios where they try to intervene. That includes a case in March where a civil restraining order was issued against a woman after a former coworker accused her of making death threats. The task force, with the backing of the local court, investigated the threats and arrested the woman, confiscating her weapons.
Another case in October 2022 involved a man with felony convictions and who had been identified by the task force as a “known firearm offender.” That led to an arrest and the seizure of a fully automatic converted machine gun. Prosecutors say ballistics tests linked the gun to a shooting in front of children three months earlier.
An August case disclosed by McKeown’s team involved San Jose police responding to a report of “an angry man” pointing a gun at neighbors, prompting officers to obtain a gun violence restraining order. When they served the order at the man’s home, they uncovered a trove of guns, including three assault rifles and six pistols.
Rosen says these are the narrowly tailored spaces where his office and his proposed legislation are trying to make a difference.
“It doesn’t always mean that someone is going to be arrested or prosecuted, but the intervention may be a referral (for) mental health as much as anything else,” he said. “But as we’ve done more of these, we’ve seen the effectiveness. In some cases, we’re pretty confident that but for this intervention, a person would have shot himself or others.”
Rosen said he is confident that California voters — who have historically supported gun control measures — will see things his way, even as he braces for the opposition.
“I want there to be fewer guns, and safer guns, and we’re trying to do this in a way that is constitutional and pragmatic,” Rosen said. “If we don’t try, we will never succeed. This will not happen on its own.”
Donohue says if the proposal makes the ballot, he agrees with Rosen’s prognosis, even though he expects an arduous process.
“California voters seem pretty determined to move in this direction,” he said. “I think almost all of this will survive. But it will be a costly challenge with much litigation expense to get through the legal challenges.”
